DAR File No. 31438

Labor Commission, Antidiscrimination and Labor, Labor

R610-4

Employment Agency Licensing

NOTICE OF PROPOSED RULE

DAR File No.: 31438
Filed: 05/15/2008, 02:11
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This filing repeals the Commission's existing rule regarding Commission regulation of employment agencies. This action is necessary because the 2008 Utah Legislature (S.B. 60) repealed the Labor Commission's authority to engage in such regulation. (DAR NOTE: S.B. 60 (2008) is found at Chapter 240, Laws of Utah 2008, and was effective 05/05/2008.)

Summary of the rule or change:

This rule is repealed in its entirety.

State statutory or constitutional authorization for this rule:

Sections 34-23-101 et seq., 34-28-1 et seq., 34-40-101 et seq., and 63G-4-102 et seq.

Anticipated cost or savings to:

the state budget:

In the past, Labor Commission's expense in administering this regulation has been minimal, and the program generated no income. For these reasons, there will be no impact on the state budget as a result of the repeal of this rule.

local governments:

This change does not affect local governments and will not result in any cost or savings to them.

small businesses and persons other than businesses:

Small businesses performing services as employment agencies will no longer be required to comply with Labor Commission regulations. This many result in some small savings in staff time.

Compliance costs for affected persons:

Because this rule change repeals an existing regulatory requirement, it will reduce existing compliance costs.

Comments by the department head on the fiscal impact the rule may have on businesses:

Repeal of this rule eliminates an unnecessary regulatory requirement and the small costs associated with that requirement. It may therefore have a de minimis fiscal impact on businesses. Sherrie Hayashi, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Labor Commission
Antidiscrimination and Labor, Labor
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY UT 84111-2316

Direct questions regarding this rule to:

Heather Morrison at the above address, by phone at 801-530-6921, by FAX at 801-530-7601, or by Internet E-mail at hmorrison@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/01/2008

This rule may become effective on:

07/08/2008

Authorized by:

Sherrie Hayashi, Commissioner

R610. Labor Commission, Antidiscrimination and Labor, Labor.

[R610-4. Employment Agency Licensing.

R610-4-1. Authority.

This rule is being enacted under authority of Section 34A-1-104.

 

R610-4-2. Definitions.

A. "Applicant" means that person making application to the Division for a license.

B. "Commission" means The Labor Commission.

C. "Division" means the Division of Antidiscrimination and Labor within the Commission and the personnel within the Division.

D. " Division of Adjudication" means the Division of Adjudication within the Commission and the personnel within the Division.

E. "Employment Agency" means all persons, firms, corporations or associations who operate for the purpose of procuring or obtaining for money or other valuable consideration, either directly or indirectly, any work or employment for persons seeking the same, or to otherwise engage in such business, or in any way to act as a broker or go-between between employers and persons seeking work.

F. "Hearing" means that part of agency action specified in Section 63G-4-203.

G. "Job Applicant" means that person who requests the service of an employment agency in seeking employment, training, counseling, resume service, or related services.

H. "License" means a license issued by the Division, as provided in Section 34-29-21.

I. "Licensee" means a person who holds a valid license defined in R610-4-2.H. and issued by the Division.

J. "Local License" means a license to carry on the business of an employment agency issued by a local licensing agency as provided in Sections 34-29-1 through 5.

K. "Person" means any individual, company, society, firm, partnership, association, corporation, manager, contractor, subcontractor, or their agents or employees.

L. "Presiding Officer" includes those defined by Section 63G-4-103(1)(h)(I).

 

R610-4-3. Labor Commission License a Prerequisite to Local License.

A local license shall not be issued until that license prescribed by Section 34-29-21 has been secured by applicant.

 

R610-4-4. Application for License.

A written application for an employment agency license shall be filed with the Division and shall include:

A. The name and address of the applicant. The names and addresses of each partner from applicant partnerships, and the name and address of principal officer or director, of applicant corporations.

B. The full address of the place where the business of the employment agency is to be conducted.

C. The business or occupation engaged in by each applicant, partner, principal officer or director for at least two years immediately preceding the filing of the application.

D. The proposed name of the agency. The Division may reject any proposed name which is the same, or similar to, the public employment agency or to a presently licensed employment agency. The applicant which is to be an enfranchised member of an employment agency system may, however, include in its application the name of the system.

E. In addition, two affidavits shall be submitted as to the character of applicants by persons who are residents of the city or county in which the agency is to be conducted, and who have known applicant for at least one year. Affidavit shall be completed as to the individual or to the partners, if a partnership and if a corporation, as to the principal officer or director.

F. A photo copy of the bond filed with the city or county as specified in Section 34-29-4.

G. The applicant's completed financial statement.

H. Other information as the Division may require.

 

R610-4-5. Eligibility Requirements for License.

A. In the opinion of the Division applicant shall be:

1. Of good character, and

2. Able to show financial responsibility for proper conduct of business.

B. The applicant shall be at least 21 years of age.

 

R610-4-6. Required Documents.

The following documents shall be filed for approval, together with the application for license.

A. Fee schedules as provided in Section 34-29-10.

1. Subsequent fee schedule changes may be made as provided in Section 34-29-10.

B. Employer job order form in duplicate.

C. Job applicant's contract if different from job order form.

 

R610-4-7. Denial, Suspension or Revocation of License.

The Division may deny, suspend or revoke a license when:

A. The application or the required documents are not in proper form when submitted. Applicant may re-submit in proper form within 30 days after notice by the Division. If proper submission is not completed during this period, license shall be denied;

B. Any information provided as a part of the application process is false or misleading; or

C. An applicant's license has been revoked for cause within three years from the date of application.

 

R610-4-8. Period of License.

A license to operate an employment agency is valid only for the person and place named in the license and is effective from the date specified therein to and including the next following December 31, unless suspended or revoked.

 

R610-4-9. Renewal of License.

A. Annually, at least 45 days prior to the expiration date of the license, the Division shall mail to each currently licensed employment agency a license renewal application form and may require specific documents to be submitted with the renewal form.

B. Each employment agency or their agent shall submit the completed license renewal form along with any requested documents at least 30 days prior to the expiration date of their current license.

 

R610-4-10. Advertising.

A. No employment agency shall publish or cause to be published any false, fraudulent, or misleading information, representation, notice, or advertisement.

B. Advertising shall be factual.

C. Positions listed in the "Help Wanted" columns of newspapers or other media shall refer to bona fide openings available at the time copy is given to these publications for insertion.

 

R610-4-11. Ethical Practice and Conduct.

Every licensee shall deal openly, fairly, and honestly in the conduct of the employment agency business and comply with the following standards:

A. Relations with employers.

1. A candidate's personal record, employment record, qualifications, and salary requirements shall be stated by the agency to the employer as accurately and fully as possible.

2. Candidates shall be referred to the employer for interview only with the prior authorization of the employer through a bona fide job order, which may be given verbally.

3. Confidential information relating to the business policy of employers, which is imparted as an aid to the effective handling of their job requirements, shall be treated accordingly.

4. Letters, bulletins, and resumes concerning applicants that are presented to employers shall represent bona fide candidates.

B. Service charges and collections.

1. No fee charge shall exceed the maximum amount applicable, as listed on the fee schedule filed with the Division, at the time of job referral resulting from a bona fide job order.

2. No job applicant shall be held obligated for a fee until an offer and acceptance have been made between employer and job applicant as a result of the agency's efforts resulting from a bona fide job order.

3. Adjustments and refunds of fees shall be made promptly.

4. Account collection methods shall conform to ethical business standards.

 

R610-4-12. Bona Fide Job Order.

A bona fide order for employment may be considered to have been given by an employer to an employment agency under the following conditions:

A. If the employer or his agent, in person, by telephone, by telegram, or in writing, registered a request that the agency recruit, or gave permission to the agency to refer, applicants for employment who meet stated job specifications and furnishes information as required by Section 34-29-13:

1. The order is valid for the referral of any qualified applicant until it is filled or canceled by the employer and may serve as the basis for agency advertising. The agency shall contact the employer after a reasonable length of time to insure that the position is still vacant prior to any additional advertising.

B. A bona fide order for employment valid for one specific applicant only (and not valid for advertising) shall be considered to have been given if, as the result of the agency's bringing the qualifications of the job applicant to the attention of an employer, the employer's interest in exploring the possibility of employing the applicant is evidenced by one or more of the following facts:

1. The employer agrees to interview the job applicant.

2. The employer requests that the agency furnish him with the job applicant's resume or other written history data.

3. The employer initiates direct contact with the job applicant as a result of information furnished by the agency.

C. The employment agency shall identify itself to employers as an agency and in all cases where the employer is to pay the fee, the agency shall obtain the employer's agreement from the personnel manager or other agent.

 

R610-4-13. Commencement of Agency Action and Hearings.

A. A dispute involving fees, as denoted in Section 34-29-10(3), shall be filed with the Division of Adjudication in writing, which filing shall constitute a request for agency action.

B. For purposes of Section 63G-4-202(1), the agency action requested in R610-4-13.A. is designated as an informal adjudicative proceeding conducted subject to the provisions of Section 63G-4-203. However, any proceeding may be converted to a formal adjudicative proceeding pursuant to Section 63G-4-202(3).

C. The Division of Adjudication may investigate any complaint of alleged violation of Sections 34-29-1 et seq. or R610-4 against an employment agency to determine the merits of the complaint, and attempt to resolve the dispute.

D. If an informal hearing is held, the presiding officer shall hear both sides and accept all relevant evidence.

1. A signed Order by the presiding officer shall be issued pursuant to Section 63G-4-203.

2. After issuance of the presiding officer's Order, the only agency review from an informal adjudicative proceeding available to any party is a request for reconsideration as specified in Section 63G-4-302. Reconsideration shall be based on the contents of the file. No new evidence shall be accepted. The Commission, or Division Director if so designated by the Commission, shall be the reviewer for the purpose of reviewing all matters where a request for reconsideration was properly filed and shall do so pursuant to Section 63G-4-302(3).

3. Judicial review of the final agency action resulting from an informal adjudicative proceeding shall be by the district court pursuant to Section 63G-4-402.

E. Any proceeding converted to a formal adjudicative proceeding by the presiding officer shall be conducted pursuant to Section 63G-4-206.

1. A signed Order issued by the presiding officer shall be pursuant to Section 63G-4-208.

2. After issuance of the presiding officer's Order resulting from a formal adjudicative proceeding, any party may seek review of the Order by the Commission, pursuant to Section 63G-4-301.

3. Judicial review of the final agency action resulting from a formal adjudicative proceeding shall be pursuant to Section 63G-4-403.

 

R610-4-14. Time.

A. An Order is deemed issued on the date on the face of the Order which is the date the presiding officer signs the Order.

B. In computing any period of time prescribed or allowed by these rules or by applicable statute:

1. The day of the act, event, finding, or default, or the date an Order is issued, shall not be included;

2. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a state legal holiday, in which event the period runs until the end of the next working day;

3. When the period of time prescribed is less than seven days, intermediate Saturdays, Sundays, and state legal holidays shall be excluded in the computation;

4. No additional time for mailing shall be allowed.

 

KEY: employment agencies, licensing

Date of Enactment or Last Substantive Amendment: July 2, 1999

Notice of Continuation: June 11, 2004

Authorizing, and Implemented or Interpreted Law: 34-23-101 et seq.; 34-28-1 et seq.; 34-40-101 et seq.; 63G-4-102 et seq.]